The Implicit Relation of Psychology and Law

Women and Syndrome Evidence

Fiona Raitt, Suzanne Zeedyk

• Publisher: Routledge
• Year: 2002
• Print ISBN: 9780415147828
• eBook ISBN: 9781134754427
• Edition: 1
• Topic: Psychology
• Subtopic: Mental Health in Psychology
• Index: Psychology

From a feminist perspective, the authors critically review the current use of psychology in law and identify a powerful collusion between the two fields which works actively against the interests of women. They provide support for their argument in such areas as child abuse, domestic violence, rape and abortion.This groundbreaking international text draws on both research findings and case material from various countries including Australia, New Zealand, Canada and South Africa as well as the USA and Great Britain. The Implicit Relation of Psychology and Law brings an innovative, feminist analysis to these affiliated fields. Fiona E. Raitt and M. Suzanne Zeedyk explore the role of psychological syndromes (i.e. Battered Woman's Syndrome, Rape Trauma Syndrome, Pre-menstrual Syndrome and False Memory Syndrome) within the courtrooms of the UK and the US. In addition to the explicit relationship between the two fields, they argue that there is an unrecognised implicit relation existing within the intersection of psychology and law, which they find works to the disadvantage of women.
Both novel and controversial and written in an accessible style, The Implicit Relation of Psychology and Law will engage readers from a wide range of disciplines including: psychology, law, critical theory, criminology and women's studies.

1 Introduction

We are not here to make ourselves comfortable.

Doris Lessing¹

The relationship between law and psychology is thriving, and it now encompasses a variety of domains: eyewitness identification, the process of jury deliberations, the accuracy of children’s testimony, the reliability of confession evidence, and theories of criminal behaviour, amongst many others. This book focuses on one domain – the use of syndrome evidence in the courtroom – and argues that, underlying the apparent pragmatic relation of these two disciplines, in which psychological evidence is used explicitly to assist law in interpreting human behaviour, is another type of relation. This one is implicit, based on epistemological assumptions that the disciplines share. When the two work together, the biases inherent in such assumptions are strengthened. We are particularly concerned about the ways in which these hidden assumptions work to the disadvantage of women. The intention of this book is to theorise this implicit relation, exploring the ways in which it shapes the use of scientific facts and the pursuit of legal truths.

The last two decades have witnessed increased willingness to bring evidence about psychological syndromes into the courtroom. Donald Downs (1996) has provided a glimpse of what he terms the ‘syndrome society’, territory now occupied by a vast range of syndromes including Post-Abortion Syndrome, Abortion Survivor Syndrome, Battered Child Syndrome, Parental Alienation Syndrome, Child Sexual Abuse Accommodation Syndrome, Attention Affective Disorder, Multiple Personality Disorder, Postnatal Depression, Failure Syndrome, Gambler’s Syndrome, Racial Hatred Syndrome, Internet Addiction Syndrome, Hope Deficiency Syndrome, and Divorce-Related Malicious Mother Syndrome (this last being one of our favourites). Within the courtroom setting, attempts are often made to use syndrome evidence as an explanation for the behaviour of one of the parties in a case. In particular, syndrome explanations are becoming a common way of accounting for the actions of women in cases where they are accused of, or accuse others of, criminal offences.

Diagnoses such as Battered Woman’s Syndrome and Premenstrual Syndrome have become familiar to the public in this way. Lawyers seek to have evidence about a relevant syndrome admitted in a case in the hope that this will act as a mitigatory factor on their client’s behalf or that it will reinforce the credibility of a key witness. While the appearance of syndromes has been most frequent in the US courts, there have also been a number of high-profile cases occurring in other countries. As the impetus builds to permit more of this type of evidence into the courts, it is reasonable to consider whether it has a wholly beneficial effect. What purpose does such evidence serve? How valid is the explanation it provides? In what ways are syndrome explanations gendered? Are there ramifications beyond the outcome of any specific case? To what hazards should the legal system, psychology, and society itself be alert?

In this book we examine the evolution of syndromes as a psychological condition and their incorporation into law. In contrast to the large number of commentators who welcome the potential for syndrome evidence, we have reservations about its value. We argue that the origins of psychological syndromes, rooted as they are in the medical diagnostic process and classified as pathological disorder, ultimately render them incapable of protecting the interests of women as a whole. This is the case even where they appear to benefit individual women. Our argument is based on the premise that the problems caused by syndrome evidence derive from connections between the disciplines of psychology and law. The connections exist at two levels: first, within the mechanisms that overtly govern the admission of psychology into the courtroom – what we describe as the explicit relation between the disciplines – and secondly, within the covert epistemological relationship that underlies such mechanisms – what we describe as the implicit relation. We believe the implicit relation works to the disadvantage of women and that this effect will be reinforced as the legal process makes greater use of psychology to assist in its decision-making. The implicit relation has gone too long unacknowledged, perhaps unrecognised, and certainly unarticulated.

The perspective from which this text pursues its theoretical critique is feminism. As a form of critical thinking, feminism encompasses many variants (for discussion see Beasley, 1999; MacKinnon, 1989; Naffine, 1990; Olsen, 1990; Rich, 1980; Ussher, 1991), but it is palpable that virtually every discipline in the academic spectrum has now been subjected to feminist analysis and found to be wanting. For example, English literature has traditionally ignored the contributions of women authors (e.g. Gonda, 1992a). Economics endorses models that obscure the ways in which ‘women’s work’, including housework, childcare, and emotional labour, contribute to the economy (e.g. Waring, 1989). Chemistry, physics and mathematics have failed to give attention to the way in which their epistemic values marginalise women’s interests (e.g. Wertheim, 1997). Architecture prioritises public and commercial structures over those of more private, household spaces (e.g. Berkeley and McQuaid, 1989). Anthropology does not yet treat sufficiently seriously the contributions of women to the cultural, linguistic, economic, and agricultural environments (e.g. di Leonardo, 1991). Geography has constructed its theories based on a masculinist gaze, which conceives of landscape in terms of ownership and control, rather than in terms of a reciprocal relationship with the physical environment (e.g. Rose, 1993).Psychology has characterised Woman as inferior to Man, invoking biological, sociological, and cognitive models to sustain that comparison (e.g. Bohan, 1992). The standards against which law evaluates behaviour reflect male experience and expectations (e.g. MacKinnon, 1989). (See volume edited by Kramarae and Spender (1993) for a comprehensive survey of feminist critiques of these and other disciplines.)

It is not only feminism that has challenged orthodox thinking. Major critiques have been undertaken by movements such as postmodernism, social constructionism, post-structuralism, Marxism, dialogics, symbolic interactionism, and critical legal studies, all in the quest for transformation, insight and ‘truth’, even where that truth is necessarily subjective, variable and fluid (for review in law, see Minda, 1995; and in psychology, see Smith, Harré, and van Langenhove, 1995). All owe a debt to Michel Foucault’s intellectual vision as he charted new territory in his dissection of truth, power, and knowledge.

Truth is a thing of this world: it is produced only by virtue of multiple forms of constraint. And it induces regular effects of power. Each society has its regime of truth, its general politics of truth: that is, the types of discourse which it accepts and makes function as true; the mechanisms and instances which enable one to distinguish true and false statements, the means by which each is sanctioned; the techniques and procedures accorded value in the acquisition of truth; the status of those who are charged with saying what counts as true.

(Foucault, 1980: 131)

For Foucault, science (including psychology) and law are two of the foremost social institutions implicated in this ‘regime of truth’ and in the exercise of power.

The premise basic to feminist analysis is that human relations are arranged on a power dynamic that favours the male, and that if structural change is to be effected, account must be taken of gender. Most feminist analysis has been confined within the limits of individual disciplines. This is perhaps odd, given that a broader multi-disciplinary perspective reveals more effectively the extent to which women have been excluded from full societal participation. An inter-disciplinary perspective, such as the one we adopt here, brings particular strengths, too. It is well suited to uncovering the obscure mechanisms that facilitate that exclusion. The implicit relation between psychology and law is one of those mechanisms.

The explicit relation between psychology and law

Contemporary interest in the intersection of law and psychology could be described as explosive. A glance at a library catalogue reveals a sharp rise in the number of books published on ‘psychology and law’ over the last 20 years. Numerous journals have been launched to highlight and encourage psycholegal research: Issues in Criminological and Legal Psychology (1973), Law and Psychology Review (1975), Law and Human Behavior (1977), Behavioral Sciences and the Law (1982), Criminal Behavior and Mental Health (1991), Psychology, Crime, and Law (1994), Psychology, Public Policy, and Law (1996), and Legal and Criminological Psychology (1996).Associations and societies have also been founded, such as the British Psychological Society’s Division of Criminological and Legal Psychology (1977), the Psychology and Law Division of the American Psychological Association (1981), the European Association of Psychology and Law (1991), and the UK-based Behavioural Science and the Law Network (1994). Recent international conferences that have been hosted include the European Conference on Psychology and the Law, in Siena (1996); Controversial Expert Evidence, in London (1997); and the joint European Association of Psychology and Law and the Psychology and Law Division of the American Psychology–Law Society, in Dublin (1999). New terminology and specialist areas, such as ‘psycholegal studies’ and ‘forensic psychology’, have even emerged. It is now possible to complete whole degree courses in these areas, with undergraduate and postgraduate textbooks (e.g. Kapardis, 1997; Memon, Vrij, and Bull, 1998) having been published to facilitate such programmes and professorial chairs being founded to head them. This brief survey makes it obvious just how much interest in the links between psychology and law has been ‘mushrooming’ (Farrington, 1997: viii) within recent years.

The specific ways in which psychology intersects with law vary. Police make use of criminal profiling, deception detection, interviewing strategies, and other techniques developed within psychology. Psychological theory is used extensively in prison systems, in developing approaches to working with offenders, designing clinical treatment programmes, and enacting parole supervision. Lawyers undertaking family casework seek opinions of clinical psychologists on the suitability of applicants as parents in cases involving the care, adoption and custody of children. Lawyers acting for defendants in criminal cases seek the opinion of clinical and forensic psychologists on the mental status of clients, including their IQ or neuropsychological functioning, to assist in the preparation and conduct of the case.

It is, however, in the realm of expert evidence that psychology has perhaps gained most recent attention within the legal setting. This occurs through psychologists serving as expert witnesses in the courtroom. The function of an expert witness is to provide to the trier of fact (i.e. the jury or the judge) knowledge that is considered to be so specialist, abstract, or complex that it requires an expert to explain it. Expert testimony constitutes an exception to the general rule that witnesses must confine their testimony to matters that they have directly observed. Experts are the only witnesses permitted to give an opinion (based on the facts), as opposed to recounting information that may make up the facts. The particular benefit of an expert is that s/he is able to offer specialist insight and to exercise professional judgement.

[I]t is clear that expert opinion is not the mere conjecture, surmise or speculation of the expert: it is his [sic] judgment on a matter of fact; it differs from ordinary evidence on matters of fact in that it is not based on the untutored senses or on the observations of the average man [sic], but on specialised training, experience out of the common, and/or theoretical information of a recondite kind.

(Kenny, 1983: 199)

There is no limit to the categories of knowledge that are potentially eligible for expert assistance. However, there are limits as to what kind of information can be offered within those categories. The rules of evidence restrict expert testimony to certain types of knowledge, such as that which has gained enough recognition within its field to permit it to be described as ‘generally accepted’ (Daubert v Merrell Dow, 1993). As will become apparent, the consequences of these constraints are very significant.

The range of topics on which psychologists have been asked to give expert evidence includes eyewitness testimony, child witness testimony, criminal profiling, reliability of confession evidence, sexual discrimination, crowd behaviour, and psychological syndromes. The number of psychologists offering information about such topics, in the capacity of expert witnesses, has risen dramatically in recent years (Gudjonsson, 1996). Entire careers can now be built around the expert role, supported by training materials developed to enhance psychologists’ ability to fulfil that role, such as the instructional video marketed by the British Psychological Society, entitled Expert Testimony: Developing Witness Skills (1994), and The Handbook of Psychology in Legal Contexts, edited by the lawyer/psychologist team of Carson and Bull (1995). This expansive growth has contributed to calls for an extension of the boundaries of admissible expert psychological evidence (e.g. Blau, 1984; Mackay and Colman, 1991). Indeed, numerous commentators have expressed confidence about the future, including Andreas Kapardis (1997: 179), who believes there is ‘greater readiness to admit psychological evidence’ amongst even traditionally conservative jurisdictions, and Stephan Landsman (1995: 157), who predicts that ‘[o]ver the course of the next decade a great deal [in regard to the use of expert witnesses] is likely to happen’.

Expert evidence is one area which has been the subject of extensive debate within the psycholegal literature, with attention focusing particularly on admissibility rules. These are the processes by which evidence, including that relevant to psychological syndromes, is allowed into the courtroom. It is these processes that frame what we perceive to be the explicit relation between law and psychology. They include, for example, the Daubert guidelines, the Turner rule, and the concepts of reliability and helpfulness, all of which are discussed in more detail in Chapter 2. This debate about admissibility has highlighted differences in the philosophical approaches that psychology and law have each adopted in their attempts to make sense of human behaviour. Much attention has been directed to devising ways in which tensions and conflicts between them can be overcome. We wish, conversely, to draw attention to the ways in which the philosophies of law and psychology are similar. It is this harmony, inherent within the explicit relation, that gives rise to the implicit relation, the effect of which is to restrict the kinds of explanations about human behaviour that can be offered for law’s consideration in the first place. We wish to illuminate the way in which such restrictions are particularly deleterious to women.

We argue that the implicit relation comprises three key characteristics: the tenet of objectivity, a male normative standard against which human behaviour is evaluated, and an individualistic model of human behaviour. These characteristics are central both to psychology and to law; when the two join forces, the characteristics are reinforced and further empowered. Crucially for our interests here, they shape the development and the operation of syndrome evidence. Although each of these three characteristics has been criticised within the separate disciplines, there has been little consideration of the three characteristics from an inter-disciplinary perspective.

The implicit relation between psychology and law

The intersection of law and psychology holds advantages for each field. Law already has the benefit of the power derived from the political significance of ‘the rule of law’ fundamental to Western democracies, but it welcomes assistance from psychology in interpreting aspects of human behaviour about which it may be less informed. Psychology seeks to supply knowledge that upholds the rigour and reliability of scientific methods, thus offering trustworthy insights and expertise to law. Overall, it is believed that by bringing together two apparently independent and autonomous fields, the search for justice and knowledge is furthered.

The key to the success of the relationship rests on the promise of the scientific method. Whilst it owes its origins to philosophy, psychology now regards itself as a science (as discussed in Chapter 3). It conducts empirical research using scientific methods, such as experimental designs and statistical techniques, which test hypotheses designed to be supported or falsified. In Western culture, considerable kudos attaches to knowledge that is considered ‘scientific’. Massive amounts of money from government and private enterprise fund scientific research; media attention is given daily to scientific developments and discoveries; scientists continue to be regarded with esteem. Small wonder then that many psychologists strive to secure for psychology a reputation as a science, by emphasising its biological, neurological, and empirical basis (e.g. Eysenck, 1998; Gleitman, Fridlund, and Reisberg, 1999; Rosenzweig, 1991; Santrock, 1996; Staats, 1991).

The ideology of law is one that presumes to reflect political society: its socio-economic basis, cultural norms, and moral consensus. Law derives its authority from these foundational elements and in a modern democracy is assumed to mirror social attitudes. Only occasionally does law lead in the formation of societal values and norms. Rather, governments claim legitimacy for legislative reform by reference to manifesto commitments endorsed by an electorate. Once that legislation reaches the courtroom and is clothed in recognisable legal form, ready to be interpreted and applied by an independent judiciary, its political origins are deemed irrelevant to the decision-making process, underpinning law’s apparently value-free universality.

Feminist analyses in psychology and law reveal that neither discipline achieves its objectives. Psychology’s knowledge is problematic because (like all science) it assumes a neutrality and generalisability in its enquiry that ignores the agency of those designing and conducting the research (Bohan, 1992). Legal theory is prejudiced in a similar manner (Smart, 1989). Among the biases that disciplines exhibit is support for androcentric values and assumptions. The conjunction of the two disciplines can only serve to reinforce kindred dispositions and to aid the resistance directed against any challenge for reform. It is the scrutiny of that conjunction that concerns us in this book.

If we now take a brief look at each of the three key characteristics that underpin the implicit relation, the framework for our theoretical argument will be complete. The first characteristic, objectivity, is fundamental to both fields. Psychology, like other sciences, takes as its primary aim the discovery of generalisable, objective truths. The use of decontextualised, empirical methods is believed to achieve that. Law, too, places a high value on objectivity, in that objectivity appears to offer an impartial, stable criterion by which behaviour can be measured and evaluated. Qualities such as rationality, reason, and logic are regarded as close siblings of objectivity, and all of these are highly valued by both psychology and law, because they are viewed as the path to ‘truth’.

The notion of objectivity has been criticised by many commentators, but these observations tend not to be regarded as seriously problematic by mainstream scholars in either science or law (e.g. Hart, 1961, 1968; Morgan, 1996, 1998; Sokal and Bricmont, 1998; Wolpert, 1998). Many critics within psychology (e.g. Alcoff and Potter, 1993; Bohan,...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Table of Cases
• Preface
• Acknowledgements
• 1. Introduction
• 2. The Explicit Relation
• 3. The Implicit Relation
• 4. Battered Woman's Syndrome
• 5. Rape Trauma Syndrome
• 6. Premenstrual Syndrome
• 7. False Memory Syndrome
• 8. Moving Beyond the Implicit Relation
• Notes
• References